O R D E R

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

2. The petitioner is the second accused in crime No.41/2020 of Excise Enforcement and Anti Narcotic Special Squad, Ernakulam. Above case is registered against the petitioner alleging offence punishable under Sec.22(C), 20(b)(ii) A and 29 of the NDPS Act. 3. The prosecution case is that on 8.12.2020 at 7.45 pm, the petitioner was found in possession of 0.4171 gms of LSD stamps (25 nos.), 28.7501 gms (100 nos.) MDMA and 20 gms of ganja at the office room of DTDC courier company, Paravur franchisee along with the 1st accused in the crime in violation of NDPS Act and Rules. It is alleged that the accused No.3 in the crime send the contraband item through courier from Goa and the 1st and 2nd accused received the same for the purpose of sale. The petitioner was arrested on 8.12.2020.

4. Heard counsel for the petitioner and the Public Prosecutor.

I am considering this bail application in a situation where the 2nd wave of COVID-19 is affected the entire Kerala. The 2nd wave of COVID-19 is spreading in the country and the citizens are facing serious difficulties. In the state of Kerala, the 2nd wave of pandemic is creating lot of problems and even the day-to-day life of the citizens are affected. The state of Kerala declared a lock down from tomorrow onwards. Everyday about 30,000 to 35,000 people are tested positive with COVID-19. Life is more than anything. I am considering this bail application in the light of the above circumstances.

5. The counsel for the petitioner submitted that the first accused is already released on bail by this Court as per order dated 04.05.2021 in B.A.No3577/2021. The counsel submitted that even if the entire allegations in the final report is accepted, the prosecution has no case that the petitioner was in conscious possession of the contraband article. The counsel takes me through the 3rd paragraph in page 5 of the final report, in which, it is stated that the first accused misused the name of the petitioner. The counsel submitted that the petitioner was not in conscious possession of the contraband article even if the prosecution case is accepted in toto. The counsel also submitted that even if the allegations against the petitioner are accepted, in the light of the principles laid down by this Court in B.A.No.3577 of 2021, the petitioner who is the second accused is also entitled bail.

6. The learned Public Prosecutor very seriously opposed the bail application. The Public Prosecutor submitted that huge quantity of MDMA pills and LSD Stamps were seized from the petitioner and the other accused. The prosecutor submitted that in the light of the principles laid down by the Apex Court in Heera Singh and another v. Union of India (Crl.A.No.722/2017), the point raised by the first accused in the other bail application will not stand. The learned Public Prosecutor cited several decisions of the Apex Court and this Court to show that, this Court need not consider the merits of the case while considering a bail application.

7. It is a fact that the final report in this case is already filed long back. The petitioner was arrested on 08.12.2020. When the final report is filed the analyst report was not available. Even now the same is not obtained. No criminal antecedents is alleged against the petitioner. This Court allowed the bail application of the first accused as per order dated 04.05.2021. The relevant portion of the order is extracted hereunder.

“5. It is true that the allegation against the petitioner is very serious. But the petitioner is in custody from 8.12.2020 onwards. In the bail application, a specific contention is raised about the quantity of the contraband seized from the petitioner. Para 7 of the bail application is extracted hereunder:

"Without prejudice to the contentions stated above, it is submitted that the contrabands allegedly seized will not go beyond intermediary quantity